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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 08-31-2013, 02:06 AM
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Default How to prepare for first motion

Some questions regarding motion preparation.

My ex and her lawyer say a lot of negative crap, but ultimately they want retro SS/CS for 6 years of about 30K. Using actual incomes, I've overpaid by 12K to 30K, depending on if you use SSAG or our verbal/email SS agreement. There is no signed SS agreement - I've just paid what was agreed to via email with her and her lawyer 6 years ago (she's on her fourth lawyer not much to show for it). We have a CS agreement that states update July 1 every year based on previous year NOA. They want that tossed because it was not witnessed.

They also want me to pay current SS/CS based on a guess of her income this year (which is a low unsubstantiated number, though she has been off work a bit with a bad back), and my last three years of income. If you use her last 3 year average, I pay about 1/3 of what they want. If you use my income to date this year, I pay about 1/3 of what they want. They are cherry picking which incomes to use.

They filed a motion with affidavit, factum, and book of authorities. I replied, they replied. Their final reply also came with a filed offer to settle, and Form 25 Order prefilled with their unjustified (IMHO) request.

I think the motion is too complex, and that it is clear that following our CS/SS agreements appears reasonable and if they want to fight it out, it should go to trial and the motion be dismissed (I have paid CS/SS every month for 6 years on time and following our agreements - offset CS using NOAs).

I've just realized that given what is in my ex's affidavits, and how different they are from mine (I believe I live in the real world firmly), the only way we can settle is by a judge making it so. One of us needs a reality check - I sincerely hope the judge does a good job and doesn't pick some sort of middle ground, but decides what is just and reasonable - because the middle ground ain't that!

Anyway, here are my questions:

1. Should I file an offer to settle? I made an offer via email before, but have revoked them all. In my mind everything is settled! There is nothing to do but get divorced. All assets are split and we have a simple SA that dictates guideline CS. And we agreed in email that I would pay diminishing SS for 7 years (one year to go).

2. Can/should I refer to their book of authorities - I image I would refer to a lot of the same authorities.

3. What is normal time line for retro (how many years and under what circumstances)? Retro CS? Retro SS? She first filed a court application about 2 years ago, and we've just had a one case conference since then. In my world, she owes me retro, but I don't want it, what's done is done - except perhaps the threat of owing me retro to keep her out of court (after I win this motion!)

4. Should I fill in a Form 25 order for what I think is reasonable?

5. My affidavit exhibit calculations reference mysupportcalculator.ca and my ex's lawyer use divorcemate printouts - no difference that I can see. Any disadvantage that I don't have divorcemate printouts (or mysupportcalculator.ca for that matter - I didn't include the printouts, just used the numbers)?

Last edited by billm; 08-31-2013 at 02:15 AM.
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Old 08-31-2013, 01:57 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
1. Should I file an offer to settle?
It is almost always prudent to serve a reasonable offer to settle on the other party.

Quote:
2. Can/should I refer to their book of authorities - I image I would refer to a lot of the same authorities.
Be careful, and consider legal representation.

They are saying, "these cases represent the state of the law". If you agree, you are saying "These cases represent the state of the law, however the other side's application of the law to the facts at hand is incorrect".

Quote:
3. What is normal time line for retro (how many years and under what circumstances)?
It depends on the circumstances, with spousal support having greater variance than child support.

You may wish to consider CanLII - 2006 SCC 37 (CanLII)

You also may wish to consider:
Quote:
RULE 14: MOTIONS FOR TEMPORARY ORDERS

WHEN TO MAKE MOTION

14. (1) A person who wants any of the following may make a motion:
1. A temporary order for a claim made in an application.
2. Directions on how to carry on the case.
3. A change in a temporary order. O. Reg. 114/99, r. 14 (1); O. Reg. 544/99, s. 6; O. Reg. 89/04, s. 6 (2).
if you are going to argue that arrears in support is not temporary relief and should be reserved to trial.

Quote:
4. Should I fill in a Form 25 order for what I think is reasonable?
That is asking the other side to consent to an Order. Or, you bring one if you are very, very certain what the judge will decide. Normally that is drafted after the motion.
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  #3  
Old 09-11-2013, 10:01 AM
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Default Motion held - update

FYI

I had my motion yesterday. The first date was adjourned on my request because the other side did not follow the timeline rules in serving the affidavit to me and give me enough time to prepare.

Motion was about everything and started by my ex. CS/SS, arrears (of about 25K), setting aside signed and email based agreements, imputing income, etc. I self rep'd and my ex had a lawyer (her new fourth lawyer).

My position was that all things have been settled and I have overpaid support according to actual incomes and SSAG/FCSG since separation 6 years ago.

Basically, the judge said to the other side that this was way too much for a motion. The judge decided that she would just order temporary CS/SS from this date forward. The judge seem annoyed about the lack of clarity for showing what the other side wanted (which I agree as their methods for determining my income is all over the place to maximize the award each year for example.) The other side had large affidavits etc.

The judge also clearly did not like that their 14C form did not specify what records she should review before the motion.

My position regarding temporary CS/SS was that given current estimated incomes $581 CS/$0 SS was guideline. Last three year average was $583 CS/ $0 CS.

In my affidavit I said (and what I wanted to do before motion) we should follow our agreements which was to use 2012's income and update July 1, July 2013 to June 2014 (as we have always done). This would mean $724CS/$73 SS (with SS being the tail end of our SS agreement, not SSAG which would be $123)

The other side wanted to use my higher income from last year (which I estimate will be $33K more than this year - with a solid reason why), and their lowered unproven estimate for their income this year (significantly less than last year, but also with a reason). Obviously not fair. This would have been $1003 CS/$544 SS.

The judge ordered October to Dec 2013 $700 CS and $150 SS based on 2012 incomes and SSAG/FCSG. And to use 2013 incomes starting Jan 2014, to be determined by March 2014, retro to Jan 1, 2014 (ie keep paying the $850 until 2013 incomes determined March 2014, but then adjust back to January).

Regarding costs, she just said that if we can't work it out then we can request the court to do it by submitting a 2 page submission. I feel I won completely and have no obligation for her costs, not to mention that they started the motion with almost no discussion and would only stop it if I agreed to double the support that was due, and agreed to 30K of arrears that are in fact the other way around (ie. she owes me 12K in CS arrears - that I don't want as that is in the past).

Also, the judge said that if the matter is to proceed in its current form, it needs to be a long motion.

So, in the end, it was fair, as the judge used a predictable method for determining support, and one that updates yearly based on income - just as I have always done with my ex.

If my ex had not done this motion, she would have been better off as I would have paid about $800 to July 2014, but now I will pay less come Jan 2014 as my income has dropped a lot this year.

So that was my experience self rep'ing and my first time in court (other than the CC where I also self rep'd). Tons and tons of hours preparing the affidavits, updating my 13.1 , organizing the evidence, reading, and creating the factum, and serving and filing documents. But my legal bill is $0. My ex has since separation spent over $25K and has nothing to show for it.

In hindsight, I should have put all the evidence I mentioned in my affidavit regarding my current income esitmate - I missed a couple of things, though I had wanted to include it, I just over looked it at the time. However, given the ruling, it did not matter. My point is to make sure you have evidence for each and every statement of fact!

Also, I submitted mysupportcalculator.ca calculations - I think it would have been better to pay a unbundled service lawyer to print off the calculations in DivorceMate for me as I really think judge's can easily read those. The mysupportcalculator.ca is not as trusted, and my spreadsheets etc are my format and take more time to explain.

I learned a lot in this motion, and also watching the motions before mine. Each and every motion was a waste of time caused by unreasonable people who's lawyers, if they had one, enable them to be unreasonable instead of doing what is best for their client and give advice that avoids motions.

It sure is hard not to freely discuss issues and wait for your turn to talk!! When the other said says something that is completely false that can easily be shown to be false by affidavit evidence, it sucks that you have to sit there and not 'object'.

Last edited by billm; 09-11-2013 at 10:23 AM.
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Old 09-11-2013, 11:01 PM
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Quote:
It sure is hard not to freely discuss issues and wait for your turn to talk!! When the other said says something that is completely false that can easily be shown to be false by affidavit evidence, it sucks that you have to sit there and not 'object'.
The best strategy is to make notes and answer the points when it is your turn to speak, it looks great when you completely debunk their assertions item by item if needed.
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Old 09-11-2013, 11:22 PM
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Originally Posted by Links17 View Post
The best strategy is to make notes and answer the points when it is your turn to speak, it looks great when you completely debunk their assertions item by item if needed.
I did that but the judge was only interested in hearing about issues regarding what to order with respect to temporary support and not the details of the motion. So you are right, I was ready to go through the list of things they said that were not true, but was stopped a few times when defending myself regarding claims made orally about the past.

Anyway in hindsight the judge stuck to what she said and came up with a current solution (though she temporarily ordered SSAG support amount and that sucks because we have a time limited email based agreement that I was following that would end next year...). All I ever wanted, as most payors, was time limited SS!!! That should mostly be the only thing divorcing people argue about is SS.
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Old 09-12-2013, 07:18 AM
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Quote:
So that was my experience self rep'ing and my first time in court (other than the CC where I also self rep'd). Tons and tons of hours preparing the affidavits, updating my 13.1 , organizing the evidence, reading, and creating the factum, and serving and filing documents. But my legal bill is $0. My ex has since separation spent over $25K and has nothing to show for it.
I believe WorkingDad's case puts a self repped litigant's cost at $150/hour.
Just saying.
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Old 09-12-2013, 08:08 AM
FightingForFamily FightingForFamily is offline
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Congratulations Billm! It's a huge accomplishment to go through all that and come out successful. Are you going to seek costs?
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Old 09-12-2013, 10:43 AM
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Originally Posted by oink View Post
Does your EX work, and how long were you guys married?
My ex was a nurse, stopped working for 12 years while we had kids, took a one year refresher course to re-certify during the first year of separation (that I paid for). Has now been working full time for 5 years. I have paid her SS based on a email agreement for 6 years that was to end next year, but she now wants 12 years of SS she has said to me - to compensate her for the 12 years she took off she said. I support you for 12 years and you get to stay home with kids, while I do everything else, and my reward is paying you for 12 years!?

She did run a part time art resale business (spent over 10K setting it up - didn't make that back) for about four years before separation.

She didn't work full time for part of 2013 due to back problems, but is now back at work, ramping up to full time again now. Though she was also working part time while on EI etc during that time.

We were married 15 years + lived together 2 years before marriage. No one told me back then that the support clock was ticking day one of living together (even though she made more than me the first three years!)
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Old 09-12-2013, 11:09 AM
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We were married 15 years + lived together 2 years before marriage. No one told me back then that the support clock was ticking day one of living together
Commonlaw rules can be nightmarish and aren't well understood by most couples who are in these types of arrangements.

Interesting story.

A woman that used to work part-time for the company I'm at came in last week (she quit to move out of the province with her bf). I went to say hello to her and she tells me that she's back in province suing the bf that she's now broken up with for spousal support per their common law living arrangements.

What's interesting, however, is that she isn't divorced from her first husband and gets spousal from a temp order they have. In addition, they never sold their marital home and since this new bf kicked her out...she moved back in that home (with her stbx husband AND his gf). So if she's successful...she's claiming she will end up with a couple thousand in support per month from each guy. Surely there must be some limitation on being able to do this?

Needless to say, one of the other ladies at my work who pays SS to her lazy ex who never kept a job during their marriage went nuts upon overhearing this story....she got up and stormed out of the office we were in.
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Old 09-12-2013, 11:54 AM
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Originally Posted by FightingForFamily View Post
Congratulations Billm! It's a huge accomplishment to go through all that and come out successful. Are you going to seek costs?
Only if they do. Her paying over 20K for her lawyers was enough. I'm not the pay me retro support (unless there was deception) or pay me for my time kind of guy.

I just want to move forward!
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